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E. Arputhadhas v/s E. Joseph (Died) & Others


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    S.A. No. 1165 of 2003 & C.M.P. No. 10026 of 2003

    Decided On, 13 February 2020

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR

    For the Appellant: D. Rajagopal, Advocate. For the Respondents: R1, R2, R4 & R10, Died, R5, K. Sree Kumaran Nair, R6 & R7, M. Daniel Manoharan, Advocates, R8 & R9, No Appearance.



Judgment Text


(Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, praying to set aside the judgment and decree dated 27.11.2001, made in A.S.No.12 of 1996 on the file of the learned First Additional Subordinate Judge, Padmanabhapuram, reversing the judgment and decree dated 28.06.1995 made in O.S.No.275 of 1992 on the file of the Principal District Munsif Court, Padmanabhapuram.)

1. Aggrieved over the reversed finding of the first Appellate Court, the present Second Appeal came to be filed.

2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.

3. The case of the plaintiff is as follows:

The plaintiff and the first defendant are brothers. The second defendant is the wife of the first defendant. The other defendants are the sharers in the plaint property. The property originally belonged to one Samuel. He had four sons, namely Gnanakkan, Elayaperumal, Pooyan and Ramalingom. Each entitled to 1/4th share. Gnanakkan put up a house in his one fourth share. He died leaving behind his daughter Packiam Essakki Pillai to inherit his share. The said Packiam Essakki Pillai also purchased one cent on 12.12.1941 from the heirs of Pooyan. The remaining right of Pooyan was sold to the fifth defendant. The other son Elayaperumal died leaving his heirs, namely defendants 3 and 4 to inherit his one fourth share. Ramalingom, one fourth sharer, died leaving behind Madhevan, who sold his right to the second defendant, wife of the first defendant. Hence, it is his contention that Packiam Essakki Pillai was in possession of one cent and one fourth share in the plaint property and the house thereon. While so, she has executed a gift deed on 02.09.1968 in favour of two of her sons, namely the plaintiff and the first defendant. Thus, the plaintiff is entitled to 1/8th share and 1/2 cents in the plaint property and half of the house.

4. The first defendant admitting the share in the plaint filed a written statement.

5. The defendants 3 and 4 filed a written statement contending that Gnanakkan died and her only daughter was given in marriage with Sreedhana. Therefore, in the ancestral properties, she had no share. The property belonging to Samuel was partitioned on 10.11.1950. The third and fourth defendants were not allotted any share in the suit property.

6. The fifth defendant filed a written statement stating that there was a partition in the joint family property in the year 1950 between one son and the legal heirs of other two sons. The alleged deed by the mother the plaintiff is also not correct. She had no right to execute any deed. Packiam Essakki Pillai, daughter of Gnanakkan married before 1956. Therefore, she had no right to claim share in the ancestral property. The property was partitioned between three sons of Samuel. The plaintiff's mother has purchased only one cent from Rayappan. Therefore, the plaintiff is not entitled to claim a share in the entire extent, which was already partitioned.

7. The Trial Court framed six issues. On the side of the plaintiff, P.W.1 was examined and Exs.A.1 to A.23 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.16 were marked.

8. The Trial Court, after analysing the evidence, dismissed the suit. However, on appeal, the first Appellate Court allowed the appeal granting a decree of partition. Aggrieved over the same, the present Second Appeal is filed by the fifth defendant in the suit.

9. While admitting the Second Appeal, the following substantial questions of law were framed for consideration:

"(i) On the death of Gnanakkan, under the law of succession, as it stood then, would his daughter Pakkiyam Esakkipillai acquire any share in the property belonging to Samuel? And

(ii) If Pakkiyam Esakkipillai would not get any share in the property belonging to Gnanakkan, then would Section 14(1) of the Hindu Succession Act get attracted to the case on hand?"

10. The learned counsel appearing for the appellant submitted that the suit property comprised of 8 cents. The property originally is the ancestral character and owned by one Samuel. He died leaving behind four sons, namely Gnanakkan, Elayaperumal, Pooyan and Ramalingom. They were entitled to one fourth share. It is his contention that one of the sons Gnanakkan, grandfather of the plaintiff died much before 1950. Thereafter, the mother of the plaintiff was given in marriage and the marriage was celebrated by the remaining joint family members, sons of Samuel by giving Sreedhana. After the marriage, the male members in the joint family and their legal heirs entered into a partition, in which, the suit property was divided into 2 equal shares and 4 cents were allotted to the legal heirs of Pooyan and other 4 cents were allotted to Ramalingom. The other son Elayaperumal was allotted the property in some other survey number. Out of 4 cents allotted to Rayappan, 3 cents were purchased by the mother of the fifth defendant and one cent was purchased by the plaintiff's mother. The property allotted to Ramalingom was sold to the second defendant. Hence, it is contended that the mother of the plaintiff and the first defendant did not have any share in the property under the Law of Succession as it stood then. Therefore, the remaining sons of the original owner have partitioned the property and the property has been dealt with as such. Therefore, the question of claiming right by the plaintiff through his mother does not arise at all in the case on hand. The Trial Court has rightly disbelieved the plaintiff's case and dismissed the suit. Whereas, the first Appellate Court, without analysing the documents in proper perspective, has granted a partition in respect of 1/8th share in the entire suit property and also a half cent purchased by the plaintiff's mother. Hence, it is contended that the judgment of the first Appellate Court has to be set aside.

11. Despite notice, Respondent Nos. 8 and 9 have not contested the matter, who are the legal representatives of the deceased fourth respondent herein.

12. Whereas, the learned counsel appearing for the fifth respondent as well as the learned counsel appearing for the respondents 6 and 7 have sailed with the appellant's case and supported the case of the appellant.

13. I have perused the entire materials.

14. The suit was filed for partition of the plaintiff's 1/8th share and an area of half cent in the plaint property and half of the house thereon. The Trial Court has dismissed the suit. On perusal of the pleadings, it is not in dispute that the suit property originally belonged to one Samuel ancestrally. He had four sons, namely Gnanakkan, Elayaperumal, Pooyan and Ramalingom. The plaintiff and the first defendant are the grandchildren of Gnanakkan, born to one Packiam Essakki Pillai, which is also not disputed. The plaint description of the parties also clearly shows that except the fifth defendant, a third party to the family, others are all Hindus. The plaint proceeded as if the entire suit property, namely 8 cents has not been partitioned after the death of the original owner Samuel among his legal heirs. The plaintiff and the first defendant are brothers. The third and fourth defendants are the legal heirs of one Elayaperumal, one of the sons of the original owner Samuel. The other legal heirs through other sons, namely Pooyan and Ramalingom were not made as parties. It is the case of the plaintiff that his mother is entitled to one fourth share of his father Gnanakkan, one of the sons of Samuel. Besides, she has also purchased one cent from one Rayappan, one of the legal heirs of one Pooyan, who is also one of the sons of the original owner Samuel. Thus, it is the contention of the plaintiff that the property is not partitioned and the property purchased by the mother is also not partitioned and her mother has executed a gift deed to the plaintiff and the first defendant equally. The case of the defendants, particularly, the defendants 3,4 and 5, who are the contesting respondents at the relevant point of time, is that one of the sons of Samuel, namely Gnanakkan died long back. The plaintiff's mother was also given in marriage by giving Sreedhana. She had no right in the ancestral property. Therefore, the property was dealt with in a partition deed dated 10.11.1950 by the remaining legal heirs of Samuel. The fifth defendant's specific stand is that the partition has already been completed in the family. After such allotment, the plaintiff's mother has purchased only one cent. Both the plaintiff and the first defendant have put up a house in the purchased extent. They are not entitled to claim for partition in respect of entire extent. Ex.A.2 was filed by the plaintiff to show that his mother has purchased one cent in the suit property.

15. Admittedly, the relationship between the parties is not in dispute. Ex.B.1 is an important document to find out whether the plaintiff is entitled to any share in the property, as claimed by him. Ex.B.1 partition deed was entered between one Ramalingom and one Rayappan, S/o.Pooyan and one Kolappan, S/o.Elayaperumal and Kesavan, S/o.Elayaperumal, in respect of the suit property. Under Ex.B.1, out of 8 cents, 4 cents were allotted to the legal heirs of one Pooyan, one of the sons of the original owner Samuel and the remaining 4 cents were allotted to Ramalingom, another son of the original owner Samuel. Elayaperumal's sons though were made as parties to the partition deed, they were allotted different property, which is also admitted by them. Whereas, another son Gnanakkan was not made as a party. This document is of the year 1950. It is the case of the defendants that the property is the ancestral property and one of the sons of Samuel, viz., Gnanakkan already died. Therefore, by way of survivorship, the remaining male members in the family partitioned the property. The daughter of Gnanakkan, namely Packiam Essakki Pillai did not have any share in the property. The evidence of P.W.1, particularly cross-examination, when carefully seen, he has clearly stated that Gnanakkan, his grandfather died before his birth. Such being a position, when the property is in the nature of ancestral character when he died before 1950, the same was dealt with by way of survivorship. Accordingly, all the remaining legal heirs in the coparcenary have dealt with the property and partitioned. Admittedly, one of the legal heirs was allotted different property. Only Pooyan's legal heir and Ramalingom, one of the sons of Samuel, were allotted each 4 cents in the suit schedule property as per Ex.B.1. Therefore, when the partition is already completed and the daughter had no share in the ancestral property at the relevant point of time, now, the question of plaintiff claiming share in the entire property through his mother Packiam Essakki Pillai, who was not a coparcener at the relevant point of time, does not arise at all.

16. It is further to be noted that the mother of the plaintiff has purchased one cent from the divided property of one Rayappan, which was allotted to him under Ex.B.1. The remaining 3 cents were purchased from the said Rayappan by the fifth defendant's mother under Ex.B.9. Under Ex.A.2, the plaintiff's mother has purchased only one cent from Rayappan, which was already divided under Ex.B.1. The specific case of the defendants is that in one cent purchased by the mother of the plaintiff, she put up a house

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and residing there. Therefore, merely some house tax receipts filed in respect of the house, which was put up in the specific extent purchased by the plaintiff's mother, it cannot be said that she was in joint possession of the entire property, which was already divided among other coparcener in the year 1950 itself. Therefore, mere possession of the property purchased individually would not enlarge the right under Section 14(1) of the Hindu Succession Act, 1956, as absolute owner in respect of the entire property. Admittedly, she has purchased only one cent and she is entitled to the said one cent alone. Such being a position, the plaintiff and the first defendant, at the most, can divide that one cent among themselves and not to seek a partition in respect of other seven cents, which was already divided and dealt with by the divided sharers. Such being a position, the first Appellate Court has not properly analysed these facts. Accordingly, the substantial questions of law are answered in favour of the appellant. 17. In fine, the Second Appeal is allowed and the judgment and decree of the first Appellate Court are, hereby, set aside and the judgment and decree of the Trial Court are restored. No costs. Consequently, the connected miscellaneous petition is closed.
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